Minnesota Session Laws - 2001, Regular Session

                            CHAPTER 163-S.F.No. 321 
                  An act relating to probate; providing for a background 
                  study before appointment of guardians or conservators; 
                  authorizing access to data on substantiated 
                  maltreatment of vulnerable adults; providing for 
                  background study systems and records in the department 
                  of human services; appropriating money; amending 
                  Minnesota Statutes 2000, section 525.539, by adding a 
                  subdivision; proposing coding for new law in Minnesota 
                  Statutes, chapters 245A; 525. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  [245A.041] [SYSTEMS AND RECORDS.] 
           Subdivision 1.  [ESTABLISHMENT; USE.] (a) The commissioner 
        may establish systems and records to fulfill the requirements of 
        section 245A.04.  The commissioner may also use these systems 
        and records to obtain and provide criminal history data from the 
        bureau of criminal apprehension and data about substantiated 
        maltreatment under section 626.556 or 626.557, for other 
        purposes, provided that: 
           (1) the background study is specifically authorized in 
        statute; or 
           (2) the request is made with the informed consent of the 
        subject of the study as provided in section 13.05, subdivision 4.
           A person making a request under clause (2) must agree in 
        writing not to disclose the data to any other person without the 
        consent of the subject of the data. 
           (b) The commissioner may recover the cost of obtaining and 
        providing background study data by charging the person 
        requesting the study a fee of no more than $12 per study.  The 
        fees collected under this paragraph are appropriated to the 
        commissioner for the purpose of conducting background studies.  
           Subd. 2.  [NATIONAL RECORDS SEARCH.] (a) When specifically 
        required by statute, the commissioner shall also obtain criminal 
        history data from the national criminal records repository.  To 
        obtain criminal history data from the national criminal records 
        repository, the commissioner shall require classifiable 
        fingerprints of the data subject and must submit these 
        fingerprint requests through the bureau of criminal 
        apprehension.  The commissioner may recover the cost of 
        obtaining and providing criminal history data from the national 
        criminal records repository by charging the person requesting 
        the study a fee of no more than $30 per study.  The fees 
        collected under this subdivision are appropriated to the 
        commissioner for the purpose of obtaining criminal history data 
        from the national criminal records repository. 
           (b) To obtain criminal history data from the national 
        criminal records repository under this chapter, the commissioner 
        may require the background study subject to submit fingerprint 
        images electronically.  The commissioner may not require 
        electronic fingerprint images until the electronic recording and 
        transfer system is available for non-criminal-justice purposes 
        and the necessary equipment is in use in the law enforcement 
        agency in the background study subject's local community. 
           Sec. 2.  Minnesota Statutes 2000, section 525.539, is 
        amended by adding a subdivision to read: 
           Subd. 8.  [PROFESSIONAL GUARDIAN OR 
        CONSERVATOR.] "Professional guardian or conservator" means a 
        person who acts as a guardian or conservator at the same time 
        for two or more wards or conservatees who are not related to the 
        guardian or conservator by blood or marriage. 
           Sec. 3.  [525.545] [BACKGROUND STUDY.] 
           Subdivision 1.  [WHEN REQUIRED; EXCEPTION.] (a) The court 
        shall require a background study under this section:  
           (1) before the appointment of a guardian or conservator, 
        unless a background study has been done on the person under this 
        section within the previous five years; and 
           (2) once every five years after the appointment, if the 
        person continues to serve as a guardian or conservator.  
           (b) The background study must include criminal history data 
        from the bureau of criminal apprehension and data regarding 
        whether the person has been a perpetrator of substantiated 
        maltreatment of a vulnerable adult.  
           (c) The court shall request a search of the national 
        criminal records repository if the proposed guardian or 
        conservator has not resided in Minnesota for the previous five 
        years or if the bureau of criminal apprehension information 
        received from the commissioner of human services under 
        subdivision 2, paragraph (b), indicates that the subject is a 
        multistate offender or that the individual's multistate offender 
        status is undetermined.  
           (d) If the guardian or conservator is not an individual, 
        the background study must be done on all individuals currently 
        employed by the proposed guardian or conservator who will be 
        responsible for exercising powers and duties under the 
        guardianship or conservatorship.  
           (e) If the court determines that it would be in the best 
        interests of the ward or conservatee to appoint a guardian or 
        conservator before the background study can be completed, the 
        court may make the appointment pending the results of the study. 
           (f) The fee for conducting a background study for 
        appointment of a professional guardian or conservator must be 
        paid by the guardian or conservator.  In other cases, the fee 
        must be paid as follows: 
           (1) if the matter is proceeding in forma pauperis, the fee 
        is an expense for purposes of section 563.01; 
           (2) if there is an estate of the ward or conservatee, the 
        fee must be paid from the estate; or 
           (3) in the case of a guardianship or conservatorship of the 
        person that is not proceeding in forma pauperis, the court may 
        order that the fee be paid by the guardian or conservator or by 
        the court. 
           (g) The requirements of this subdivision do not apply if 
        the guardian or conservator is: 
           (1) a state agency or county; 
           (2) a parent or guardian of a proposed ward or conservatee 
        who has mental retardation or a related condition, if the parent 
        or guardian has raised the proposed ward or conservatee in the 
        family home until the time the petition is filed, unless counsel 
        appointed for the proposed ward or conservatee under section 
        525.5501 recommends a background study; or 
           (3) a bank with trust powers, bank and trust company, or 
        trust company, organized under the laws of any state or of the 
        United States and which is regulated by the commissioner of 
        commerce or a federal regulator. 
           Subd. 2.  [PROCEDURE; CRIMINAL HISTORY AND MALTREATMENT 
        RECORDS BACKGROUND CHECK.] (a) The court shall request the 
        commissioner of human services to complete a background study 
        under section 245A.041.  The request must be accompanied by the 
        applicable fee and the signed consent of the subject of the 
        study authorizing the release of the data obtained to the 
        court.  If the court is requesting a search of the national 
        criminal records repository, the request must be accompanied by 
        a set of classifiable fingerprints of the subject of the study.  
        The fingerprints must be recorded on a fingerprint card provided 
        by the commissioner of human services. 
           (b) The commissioner of human services shall provide the 
        court with information from the bureau of criminal 
        apprehension's criminal justice information system and data 
        regarding substantiated maltreatment of vulnerable adults under 
        section 626.557 within 15 working days of receipt of a request.  
        If the subject of the study has been the perpetrator of 
        substantiated maltreatment of a vulnerable adult, the response 
        must include a copy of the public portion of the investigation 
        memorandum under section 626.557, subdivision 12b.  If the court 
        did not request a search of the national criminal records 
        repository and information from the bureau of criminal 
        apprehension indicates that the subject is a multistate offender 
        or that multistate offender status is undetermined, the response 
        must include this information.  The commissioner shall provide 
        the court with information from the national criminal records 
        repository within three working days of the commissioner's 
        receipt of the data. 
           (c) Notwithstanding section 626.557, subdivision 12b, if 
        the commissioner of human services or a county lead agency has 
        information that a person on whom a background study was 
        previously done under this section has been determined to be a 
        perpetrator of maltreatment of a vulnerable adult, the 
        commissioner or the county may provide this information to the 
        court that requested the background study.  The commissioner may 
        also provide the court with additional criminal history 
        information that becomes available after the background study is 
        done.  
           Subd. 3.  [FORM.] The commissioner of human services shall 
        develop a form to be used for requesting a background study 
        under this section, which must include: 
           (1) a notification to the subject of the study that the 
        court will request the commissioner to perform a background 
        study under this section; 
           (2) a notification to the subject of the rights in 
        subdivision 4; and 
           (3) a signed consent to conduct the background study.  
           Subd. 4.  [RIGHTS.] The court shall notify the subject of a 
        background study that the subject has the following rights: 
           (1) the right to be informed that the court will request a 
        background study on the subject for the purpose of determining 
        whether the person's appointment or continued appointment is in 
        the best interests of the ward or conservatee; 
           (2) the right to be informed of the results of the study 
        and to obtain from the court a copy of the results; and 
           (3) the right to challenge the accuracy and completeness of 
        information contained in the results under section 13.04, 
        subdivision 4, except to the extent precluded by section 
        256.045, subdivision 3. 
           Presented to the governor May 21, 2001 
           Signed by the governor May 24, 2001, 1:49 p.m.